EEOC Systemic Discrimination Cases Get Top Priority
I've learned that the EEOC's investigation and litigation tactics have been a hot topic lately. The agency recently announced its four-year plan to target more employers in bigger, more costly systemic discrimination suits. Apparently, given its limited resources, the EEOC has intensified efforts to get more bang for its litigation buck by maximizing agency resources to focus on widespread patterns or practices of discrimination rather than on individual cases. The new plan calls for the EEOC to set a baseline number of systemic cases that must be maintained in the litigation docket. That number will increase by a certain percentage each year until 2016. This means that employers will face much higher levels of exposure when they come under the scrutiny of the EEOC. Investigators will be looking for reasons to turn individual cases into systemic cases, which have an exposure-level more akin to that of a class action lawsuit.
The EEOC doesn't need to go through the rigorous class action certification process in order to file a systemic discrimination case. In fact, the agency doesn't even have to wait for a single complaint to be filed. By filing a commissioner’s charge, the EEOC can initiate an investigation based upon its own suspicions of discrimination under Title VII and the Americans with Disabilities Act (ADA). Furthermore, if the agency wants to investigate potential violations of the Age Discrimination in Employment Act or the Equal Pay Act, field directors can initiate a directed investigation without even obtaining a commissioner’s charge.
Over the last year, the agency has demonstrated increased interest in cases alleging violations of the ADA. Monetary relief awarded for ADA cases increased by almost 36% last year, for a total of $103.4 million.
The agency has been targeting particular types of employment practices that discriminate against employees with disabilities. For example, employers should be wary of utilizing one-size-fits-all attendance policies and medical questionnaires that ask disability-related questions and are unrelated to the job.
Due to recent changes in the ADA regulations, employers should make sure that their policies are up to date. They should also make sure that they are engaging in a meaningful interactive process with employees with disabilities, who request reasonable accommodations, including requests for additional leave. As I've said many times, inflexible leave policies can be problematic. If you have questions about any of these suggestions, contact Springboard for assistance.
This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.